Opinion 02-137

January 23, 2003

Digest:         Where a town official who is also treasurer of a client of the two town judges’ law firm has been charged with crimes in connection with his/her town duties, and, based upon the advice of the judges’ law firm, has been suspended from his/her position with the client, both judges should exercise recusal in the pending criminal case.

Rule:            22 NYCRR 100.3(E)(1);100.4(A)(1)

Opinion:

         The two justices of a town court who are attorneys with the same law firm, inform the Committee that a local government official has been charged with various misdemeanors arising out of allegations by the town board of impropriety. The official also serves as treasurer of a client of the inquirers’ law firm. Following suspension of the official from his/her town duties, the client, on the advice of its attorney i.e., the judges’ law firm, suspended the defendant with pay from his/her duties as treasurer. The question posed is whether the two town judges should disqualify themselves from the criminal case pending in their court and have it transferred to another jurisdiction. Their letter notes that the defendant’s attorney has not requested that the judges exercise recusal.

         Notwithstanding the absence of a request for recusal, the Committee is of the opinion that, under the circumstances, the judges should recuse themselves. Their law firm has rendered advice to its client involving the defendant based upon the pendency of the criminal charges. In our view, that places the judges in a position where there might arise a public perception that their impartiality is subject to question. We realize that any advice rendered to the client was most likely not based upon any conclusions as to the guilt or innocence of the official. Nevertheless, action was taken by the client based upon advice given concerning this defendant in light of the pendency of criminal charges. It was the pendency of those charges which occasioned the action of the client based upon advice of the law firm. That creates a situation which, we believe, might appear to cast reasonable doubt on the judges’ capacity to act impartially as judges in the criminal case which gave rise to the suspension. Under such circumstances, we advise that recusal in the appropriate course of action. 22 NYCRR 100.3(E)(1), 100.4(A)(1).